Garcia-Hill (ID 99052) v. Kansas, State of

Filing 7

MEMORANDUM AND ORDER ENTERED: Petitioner's motions to proceed in forma pauperis 2 & 5 are granted. The petition for habeas corpus is dismissed as time-barred. No certificate of appealability will issue. Signed by U.S. Senior District Judge Sam A. Crow on 01/05/18. Mailed to pro se party Randy Garcia-Hill by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

RANDY GARCIA-HILL,
Petitioner,
v.

CASE NO. 17-3215-SAC

WARDEN EMMALEE CONOVER,
Respondent.

MEMORANDUM AND ORDER

This matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2254. Petitioner proceeds pro se, and the Court grants leave to
proceed in forma pauperis. By an order filed on December 8, 2017, the
Court directed petitioner to show cause why this matter should not
be dismissed due to his failure to file this matter within the one-year
limitation period. Petitioner filed a timely response (Doc. #6).
Discussion
Petitioner states that for an unspecified number of years he was
not aware of the habeas corpus remedy. He also states that once he
discovered the remedy, he consulted with his counsel and was told that
he was not eligible for habeas corpus relief. However, after he
discussed the matter with unidentified “jail house lawyers” he decided
that the remedy applies to him. Finally, petitioner states that he
has been in segregation and had no access to law books or materials
for some period of time. Accordingly, he argues that he is entitled
to proceed in habeas corpus, as he has been diligent in pursuing his
rights and has been prevented from seeking relief by extraordinary
circumstances.

Equitable tolling of the habeas corpus limitation period is
available in “rare and exceptional circumstances.” Gibson v. Klinger,
232 F.3d 799, 808 (10th Cir. 2000). In order to qualify for such
tolling, a petitioner must show “(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance stood
in his way and prevented timely filing.” Holland v. Florida, 560 U.S.
631, 649 (2010)(quotations omitted). A petitioner seeking equitable
tolling has a “strong burden to show specific facts” in support of
the necessary showing. Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir.
2008).
The Court has considered petitioner’s arguments but concludes
that he is not entitled to equitable tolling. First, petitioner’s
argument of ignorance of the law and the tolling period are
insufficient to excuse his failure to timely file. It is settled that
a pro se petitioner’s ignorance of the law generally does not excuse
the failure to timely file. Marsh v. Soares, 223 F.3d 1217, 1220 (10th
Cir. 2000)(quoting Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir.
1999)). Next, while petitioner asserts that he received incorrect
advice from his counsel that he was not eligible for habeas corpus
relief, it appears that he did not seek that advice until after he
learned of the remedy “a number of years” after his conviction, and
therefore, after the limitation period expired. Finally, petitioner’s
argument that he had no access to legal materials due to his housing
classification is not an adequate basis for equitable tolling. See
McCarley v. Ward, 143 Fed.Appx. 913 (10th Cir. 2005)(rejecting
petitioner’s argument that equitable tolling was appropriate due to
his brain damage and inadequate law library). See also Miller v. Marr,
141 F.3d 976, 978 (10th Cir. 1998)(“It is not enough to say that the

… facility lacked all relevant statutes and case law or that the
procedure to request specific materials was inadequate.”) and Gibson,
232 F.3d at 808 (claim of insufficient access to relevant law is not
sufficient for equitable tolling).
For these reasons, the Court concludes this matter must be
dismissed as time-barred.
Certificate of Appealability
Under Rule 11 of the Rules Governing Section 2254 Cases in the
United States District Courts, “[t]he district court must issue or
deny a certificate of appealability when it enters a final order
adverse to the applicant.” The district court may issue a certificate
of appealability “only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When
a petition is dismissed on procedural grounds, the petitioner must
show both “(1) that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a constitutional
right and (2) that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
Here, the Court concludes that reasonable jurists would not
debate its procedural finding that the petition is time-barred and
that petitioner has not demonstrated that he is entitled to equitable
tolling of the limitation period. The Court therefore declines to
issue a certificate of appealability.
IT IS, THEREFORE, BY THE COURT ORDERED petitioner’s motions to
proceed in forma pauperis (Docs. #2 and #5) are granted.
IT IS FURTHER ORDERED the petition for habeas corpus is dismissed
as time-barred.

IT IS FURTHER ORDERED no certificate of appealability will issue.
IT IS SO ORDERED.
DATED:

This 5th day of January, 2018, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge